Appell v. Appell

• Decision Date: 08 November 1971
• Citation: 37 A.D.2d 966,327 N.Y.S.2d 190
• Parties: In the Matter of Linda APPELL, Respondent, v. Lawrence APPELL, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 190

327 N.Y.S.2d 190

37 A.D.2d 966

In the Matter of Linda APPELL, Respondent, v. Lawrence APPELL, Appellant.

Supreme Court, Appellate Division, Second Department.

Nov. 8, 1971.

No appearance for respondent.

James M. McDonough, Atty. in Chief, Legal Aid Society of Nassau County, N.Y., Mineola, for appellant; Matthew Muraskin, New York City, of counsel.

Before MUNDER, Acting P.J., and GULOTTA, BRENNAN, BENJAMIN and SHAPIRO, JJ.

MEMORANDUM BY THE COURT.

In a proceeding pursuant to article 8 of the Family Court Act, the appeal is from an order of the Family Court, Nassau County, dated January 6, 1971, which transferred the proceeding to the District Court of Nassau County for criminal prosecution.

Order affirmed, without costs.

Appellant was indicted in the County Court, Nassau County, for assault with a knife upon respondent, his wife. The indictment was dismissed and the matter transferred to the Family Court pursuant to section 813 of the Family Court Act because of the exclusive original jurisdiction of the Family Court over 'family offenses.'

Numerous proceedings were conducted in the Family Court between June, 1970 and January, 1971 and several orders of protection were issued. During these proceedings, it appeared that there was no issue of the marriage and that respondent did not want reconciliation with appellant. Respondent also alleged a further assault by appellant in violation of an order of protection. It further appeared that the underlying offense, the alleged knifing assault, had not even occurred in the marital residence and that respondent had been seriously injured thereby.

On this appeal, appellant claims that the consequences of a transfer of the proceedings to a criminal court are so critical as to require procedural due process, i.e., a hearing, before a waiver of jurisdiction can be effectuated by the Family Court pursuant to section 816 of the Family Court Act. Appellant cites, by way of analogy, Kent v. United States, 383 U.S. 541, 86 S.Ct. 1045, 16 L.Ed.2d 84.

In our opinion, procedural due process is satisfied where the Family Court states reasons for its waiver of jurisdiction based upon the record before it; and, upon review, the question presented is one of a possible abuse of discretion (Matter of Montalvo v. Montalvo, 55 Misc.2d 699, 286 N.Y.S.2d 605; People v. Gemmill, 34 A.D.2d 177, 310 N.Y.S.2d 244).

In the instant case, the record before us adequately supports the finding of the Family Court that, in view of the serious nature of the assault alleged, the previous court proceedings and the statement of respondent that she had no hope of reconciliation with appellant, its processes were 'inappropriate'.

MUNDER, Acting P.J., and GULOTTA, BRENNAN and BENJAMIN, JJ., concur.

SHAPIRO, J., dissents and votes to reverse the order and to remand the proceeding to the Family Court for a hearing on all the issues involved, with the following memorandum:

I dissent from the finding of the majority that 'the record before us adequately supports the finding of the Family Court that, in view of the serious nature of the assault alleged, the previous court proceedings and the statement of respondent that she had no hope of reconciliation with appellant, its processes were 'inappropriate'.' In my opinion the record before us is barren of any proof upon which the Family Court could make a determination that its processes were 'inappropriate' and that therefore it should relinquish its exclusive original jurisdiction, of respondent's complaint, to a criminal court.

The majority, in its memorandum, notes that 'procedural due process is satisfied where the Family Court states reasons for its waiver of jurisdiction Based upon the record before it; and, upon review, the question presented is one of a possible abuse of discretion' (emphasis supplied). I agree, but here the Family Court's 'waiver of jurisdiction' is not 'based upon the record before it', because in truth and in fact there was no record before it. The wife was the only witness before the Family Court Judge and the sum total of her testimony was that immediately after applying for a marriage license she and respondent were married in Brooklyn on February 14, 1968. The rest of the record consists of 'lawyer talk' in which her lawyer made accusations all of which were denied by appellant's attorney. Such a transcript cannot be deemed a basis for a waiver of jurisdiction by the Family Court; nor can it afford this court a basis to pass upon the Family Court's 'possible abuse of discretion.'

In Kent v. United States, 383 U.S. 541, 86 S.Ct. 1045, 16 L.Ed.2d 84 the Juvenile Court Judge (in the District of Columbia) made an order reciting that after 'full investigation, I do hereby waive' jurisdiction of the petitioner and directed that he be "held for trial for (the alleged) offenses under the regular procedure of the U.S. District Court for the District of Columbia" (see id., p. 546, 86 S.Ct., p. 1049). The statute there covering waiver of jurisdiction read:

"If a child sixteen years of age or older is charged with an offense which would amount to a felony in the case of an adult, or any child charged with an offense which if committed by an adult is punishable by death or life imprisonment, the judge may, after full investigation, waive jurisdiction and order such child held for trial under the regular procedure of the court which would have jurisdiction of such offense if committed by an adult; or such other court may exercise the powers conferred upon the juvenile court in this subchapter in conducting and disposing of such cases" (see id., pp. 547--548, 86 S.Ct., p. 1050).

Our statute while not In haec verba is substantially to the same effect. Subdivision (a) of Section 816 of the Family Court Act provides:

'The family court may transfer any proceeding originated under this article, including one transferred to it by a criminal court, to an appropriate criminal court, if it concludes that the processes of the family court are inappropriate. After the transfer, the applicable provision of the criminal procedure law and the penal law govern.'

In construing the District of Columbia statute Mr. Justice Fortas, writing for the majority of the court, said, 'It states the circumstances in which jurisdiction may be waived and the child held for trial under adult procedures, but it does not state standards to govern the Juvenile Court's decision as to waiver' (383 U.S. 541, at p. 547, 86 S.Ct. 1045, at p. 1050).

Under our statute, too (Family Court Act, §§ 811, 816), the Family Court is empowered to relinquish its exclusive original jurisdiction to further proceedings in a criminal court where it determines that its processes are 'inappropriate' to the fact situation before it, but there is no statutory delineation of the procedure to be adopted in deciding the propriety of retention or relinquishment of jurisdiction (see Matter of Montalvo v. Montalvo, 55 Misc.2d 699, 286 N.Y.S.2d 605).

Under such circumstances and considering the enormous impact of a criminal prosecution, as distinguished from a civil proceeding in the Family Court, due process necessitates the reading into our statute of a requirement for a fair hearing before the court may exercise its discretion to relinquish its original jurisdiction (cf. Specht v. Patterson, 386 U.S. 605, 87 S.Ct. 1209, 18 L.Ed.2d 326; People v. Bailey, 21 N.Y.2d 588, 289 N.Y.S.2d 943, 237 N.E.2d 205). Though, of necessity, the Family Court should be given wide latitude in determining whether to retain jurisdiction, and should not be held to any purely formalistic approach, yet, as Mr. Justice Fortas put...